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ELCAllowedKericho E & LC Appeal No. 4 of 2018· [2018] KEELC 1919 (KLR)

Samwel Rono & Another v Wesley Kipngetich Chirchir [2018] KEELC 1919 (KLR)

Environment and Land Court
27 August 2018
JOJ.M Onyango
1,138 words in judgment
View original judgmentRead on Kenya Law Watch case
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The bottom line

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What this practically means

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Executive summary

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This is a ruling of the Environment and Land Court at Kericho on the appellants' Notice of Motion dated 13 June 2018, brought under Order 22 Rule 22 of the Civil Procedure Rules and Sections 1A, 1B and 3A of the Civil Procedure Act, seeking stay of execution of the decree in Bomet PMCC 16 of 2015 (Wesley Kipngetich Chirchir v Samwel Rono and Board of Management Magenji Primary School) pending appeal in Kericho E & LC Appeal No. 4 of 2018. The application was unopposed; the respondents filed no replying affidavit or submissions despite service. Counsel for the appellants argued the appeal had overwhelming chances of success because the respondent sought to enforce a contract for the sale of agricultural land without Land Control Board consent obtained within six months, and that execution would cause substantial loss to the school's pupils. Applying the principles in Global Tours and Travels Limited as cited in Kenya Power & Lighting Company Ltd v Esther Wanjiru Wokabi, the court found the application timely (ruling delivered 21 May 2018; application filed 13 June 2018), could not assess arguability for want of proceedings and a detailed background, accepted the claim of substantial loss to the pupils, and noted the applicants' undertaking to raise funds by harambee if the appeal failed. The court granted the stay conditional on the applicants depositing Kshs. 50,000 in court as security within 30 days, failing which the stay lapses automatically. Each party was ordered to bear their own costs.

Key legal issues

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01

Whether the threshold for stay of execution pending appeal was met

Holding

The application was merited: it was filed within a reasonable time, the court found the applicants' claim of substantial loss to the school's pupils credible, and the absence of opposition persuaded the court to grant stay conditional on security of Kshs. 50,000 deposited within 30 days.

Reasoning

The court applied the Global Tours and Travels principles as cited in Kenya Power & Lighting Company Ltd v Esther Wanjiru Wokabi. It found the application, filed 13 June 2018 after a 21 May 2018 ruling, was timely. It could not assess arguability because no proceedings or detailed background were attached, but accepted the applicants' sworn assertion that execution would harm the pupils' education and welfare. With no replying affidavit or submissions from the respondents, the court granted the stay conditioned on a security deposit, lapsing automatically if not made within 30 days.

p. 2

Legal principles established

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  • Whether to grant a stay of execution or proceedings pending appeal is a matter of judicial discretion exercised in the interest of justice, weighing factors such as expeditious disposal, prima facie merits (arguability) of the appeal, judicial time and expeditious bringing of the application
  • The court considering a stay application must consider whether the application was filed without undue delay, whether there is an arguable appeal, sufficient cause in the interest of justice, and willingness to furnish security for costs

Court orders

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  1. 1.Stay of execution of the decree in Bomet PMCC 16 of 2015 pending the hearing and determination of the appeal
  2. 2.Applicant to deposit Kshs. 50,000 in court as security for costs within 30 days, failing which the stay order shall automatically lapse
  3. 3.Each party shall bear their own costs

Authorities

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Legislation

  • Civil Procedure RulesOrder 22 Rule 22
  • Civil Procedure Act (Cap 21)Sections 1A, 1B and 3A
  • Civil Procedure RulesOrder 42 Rule 6
  • Civil Procedure RulesOrder 42 Rule 2(a)
  • Civil Procedure RulesOrder 51 Rule 10(1) and (2)
  • Constitution of Kenyageneral reference (spirit of the Constitution)

Cases cited (2)

  • Global Tours and Travels Limited Nairobi Winding Up Cause No. 43 of 2000
  • Kenya Power & Lighting Company Ltd V Esther Wanjiru Wokabi
    2014 eKLR
On appeal from
Bomet Principal Magistrate's Court
Bomet PMCC 16 of 2015
Jurisdiction invoked
Order 22 Rule 22 of the Civil Procedure Rules; Sections 1A, 1B and 3A of the Civil Procedure Act (Cap 21); invoked as if under Order 42 Rule 6 of the Civil Procedure Rules

Key timeline

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Practical implications

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Frequently asked questions

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Cite this brief

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Cite this brief

Caselaw, "Samwel Rono & Another v Wesley Kipngetich Chirchir [2018] KEELC 1919 (KLR)", Case Analysis (2018). Kericho E & LC Appeal No. 4 of 2018. Source: https://new.kenyalaw.org/akn/ke/judgment/keelc/2018/1919/eng@2018-08-27

Suggested citation format for research notes or client memos. Always verify the original judgment before relying on any point.